Date: 20081023
Docket: A-366-08
Citation: 2008 FCA 323
Present: PELLETIER
J.A.
BETWEEN:
KERSHAW NANAVATY
Appellant
and
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
This is a
motion for an order settling the contents of the appeal book in an appeal of an
order dismissing an application for an extension of time to commence an
application for judicial review.
[2]
This
motion is made necessary by the appellant/applicant’s insistence that materials
which were not before the motions judge ought to be included in the appeal book.
Counsel for the applicant alleges that the material was not before the motions
judge because the registry staff unlawfully refused to accept it for filing.
Counsel goes on to say that the material in question addresses the issue of the
merit of the underlying application and is thus relevant to the disposition of
the appeal.
[3]
The applicant
was found, in administrative proceedings, to have failed to declare goods when
importing them into Canada. He seeks to challenge that
finding and to recover the amount forfeit as a result of the failure to
declare. Notwithstanding the terms of sections 131 and 133 of the Customs
Act R.S.C. 1985, c. 1 (2nd Supp.), as well as the clear
indications as to the procedure to be followed in the Minister’s delegate's
letter dated February 21, 2008, counsel attempted both to challenge the finding
that there was a contravention and to recover the amount forfeit to obtain the
release of the goods by way of action in the Federal Court. When the Crown
pleaded in its statement of defence that the amount forfeit could only be
recovered by way of an application for judicial review, counsel for the applicant
attempted to launch an application for judicial review, after the time for
doing so had expired. The sequence of events is described in the affidavit of
Korrie Dang, the Legal Assistant of Mr. Winstanley, counsel for the appellant:
(e) On May
26, 2008, he [Mr. Winstanley] personally attended at the Registry of the
Federal Court in Vancouver, B.C. with the necessary Notice of Application for
judicial review supported by the affidavit of Mr. Nanavaty, sworn on May 22,
2008, and a Notice of Motion for an extension of time to file this application,
supported by his affidavit, likewise sworn May 22, 2008.
(f) On that
date, he attempted to file both the Notice of Application and its supporting
affidavit and the Notice of Motion and its supporting affidavit; however, he
was informed by the Registry staff that could not be done unless and until the
relief sought by the Notice of Motion had been successfully applied for. In the
result, only the Notice of Motion and his affidavit were accepted for filing by
the Registry staff on May 22, 2008.
[4]
The
motions judge rejected the application for an extension of time on several
related grounds. The judge noted that since the affidavit in support of the
motion for an extension of time was that of counsel appearing on the motion and
not that of the applicant, “the Court has not been provided with a full picture
from the applicant’s perspective of all factors relevant to the consideration
of an extension of time.” The Court relied on jurisprudence of this Court to
the effect that the affidavit in support of a motion for an extension of time
should be sworn by the applicant, who is subject to cross-examination.
[5]
The Court
noted that counsel for the applicant was aware of the distinction between an
action to challenge the finding of a contravention of the Act and an
application for judicial review to set aside the decision to retain the funds
paid, and forfeit, to obtain the release of the goods. The motions judge
concluded:
8. Because
the Applicant has failed to file his own affidavit, the Court cannot tell
whether the failure to file in time was the result of counsel’s error,
counsel’s own views regarding the irrationality of the statutory scheme, or how
the actions of counsel relate to the Applicant’s own actions, motives and
instructions to counsel.
[6]
On that
basis, the motions judge dismissed the application for an extension of time to
file an application for judicial review.
[7]
On this
motion to settle the contents of the appeal book, counsel argues that, but for
the registry staff’s unlawful interpretation of the Rules, the Notice of
Application and supporting affidavit would have been before the motions judge,
and should therefore be put before the Court of Appeal.
[8]
Counsel’s
argument appears in paragraphs 6 to 8 of the appellant's Memorandum, which are
reproduced below:
6. If one
examines this Notice of Motion (Exhibit “B” to the Affidavit of Korrie Dang …)
one will see that it was given the file number “08-T-23”. Apparently, this
numbering signifies that this is “only a preliminary file, not an actual
proceeding."
7. It is
Appellant’s position that this practice has no basis whatsoever in the Rules;
and, in fact, is improper. Rules 62 and 63 make it clear that a proceeding such
as Appellant counsel was attempting to file on May 26, 2008 can only be
commenced by a notice of application. The proceeding before this appeal court
was commenced by a notice of motion. Calling a proceeding commenced by a notice
of motion a “preliminary filing” does not make it so. This piece of
administrative legerdemain does not transform a notice of motion into a notice
of application, because a notice of motion is not and cannot be an “originating
process” under the Rules. In short, there is simply no basis for this Registry
practice.
8. Had the
Registry staff followed Rules 62 and 63 (and the practice in the Supreme Court
of British Columbia), they would have accepted for filing the notice of
application for judicial review and supporting affidavit of the Appellant; and
then, within that proceeding, they would have accepted for filing the
application for the extension of time.
[9]
Counsel’s
attack on the registry staff’s practice fails to refer to subsection 18.1(2) of
the Federal Courts Act R.S.C. 1985, c. F-7 which provides as follows:
|
18.1 (2) An
application for judicial review in respect of a decision or an order of a
federal board, commission or other tribunal shall be made within 30 days
after the time the decision or order was first communicated by the federal
board, commission or other tribunal to the office of the Deputy Attorney
General of Canada or to the party directly affected by it, or within any
further time that a judge of the Federal Court may fix or allow before or
after the end of those 30 days.
|
18.1 (2) Les demandes de contrôle judiciaire sont à
présenter dans les trente jours qui suivent la première communication, par
l'office fédéral, de sa décision ou de son ordonnance au bureau du
sous-procureur général du Canada ou à la partie concernée, ou dans le délai
supplémentaire qu'un juge de la Cour fédérale peut, avant ou après
l'expiration de ces trente jours, fixer ou accorder.
|
[10]
An
application for judicial review shall be made within 30 days after the
time the decision was first communicated to the party directly affected by it,
in this case, the appellant. If it must be filed within 30 days and it is not,
then something else must happen before it can be filed. That “something else”
is the motion for an extension of time. Unless and until an applicant is
authorized to file a notice of application outside the statutory period, it
cannot be filed. To do so, notwithstanding counsel’s magisterial
pronouncements, would be a breach of the Act.
[11]
Rules 62
and 63 deal with actions, applications and appeals which is a non-exclusive
list of proceedings, as is made clear by Rule 63(2). Motions are dealt with in
Part 7 of the Rules. There is no requirement that a motion can only be brought
within a proceeding commenced by an originating document, which is apparently
the basis of counsel’s argument. Without claiming to be knowledgeable about British Columbia’s Supreme Court Rules,
I note that motions are dealt with under Rule 44 dealing with Interlocutory
Applications which appears consistent with counsel’s view of the matter. As it
turns out, the Federal Court Rules are not structured in the same way.
[12]
Consequently,
counsel’s argument that the registry’s practice with respect to motions for
extension of time to commence a proceeding is ill-considered. The appellant’s
application for judicial review is initiated by the filing of a notice of
application, which is the originating document. If a notice of application has
not been filed within the time provided in the Act, then an extension of time
must be obtained. The motion seeking an extension of time does not initiate the
application for judicial review. If granted, it allows the applicant to file
his notice of application; if refused, there is no application for judicial
review.
[13]
Counsel’s
attempt to bolster his argument by reference to “administrative legerdemain”
suggesting, as it does, trickery or deceptiveness, is offensive and an affront
to the integrity of the registry staff.
[14]
Consequently,
the contents of the appeal book should be as described in paragraph 10 of the respondent’s
Memorandum of Fact and Law. The respondent is entitled to its costs in any
event of the cause.
"J.D.
Denis Pelletier"
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